The dismantling of frontiers in the EU opens up borders to criminals and the proceeds of their crimes, but those responsible for law-enforcement and the administration of justice must continue to operate within the confines of national criminal justice systems.
This situation has been agitating a group of civil servants within the Community Budgetary Control Unit of the EU, who have come up with a set of proposals known as the corpus juris, aimed at dealing with fraud and crime aimed at the institutions of the EU.
They have been met with suspicion by lawyers in certain member states, notably Britain and Sweden. A Department of Justice spokesman said the Minister would consider these proposals if and when they were put forward by the Commission.
The proposals contain measures which, if they were to become law, would involve major departures from the normal practice of criminal law in this State. The measures include giving power to judges to order that people be detained for up to nine months without bail, and investigation and trial by judges without juries, which are giving rise to concern among some Irish lawyers.
However, the proposals are supported by Mr Justice Carney of the High Court. In a chapter in a book to be published by the Institute of European Affairs, he argues that recent events involving the European Commission demonstrate the challenge facing the EU in attempting to combat fraud against its budget.
"In this attempt to detect, investigate, prosecute and try those responsible . . . it is essential that a broader perspective than the traditional territorial application of criminal law is adopted," he says.
"There must be a consistent and transparent means of dealing with such crimes. There, moreover, must be an effective mechanism whereby those responsible are brought to justice within an appropriate forum, without any danger of differing treatment between jurisdictions.
"The corpus juris contains a framework within which the problem of transboundary fraud against the Community budget could be addressed effectively."
The corpus juris outlines a number of crimes which would fall within this framework. These include fraud in the Community budget (bogus grant applications, for example), market-rigging, corruption, abuse of office, misappropriation of funds, disclosure of secrets pertaining to one's office, money laundering and receiving, and conspiracy.
Mr Justice Carney argues that certain of these offences, like "making the award of a subsidy, grant or an exemption from duty in favour of person who clearly has no right to it", is unknown to domestic law. Both the focus of the crime and its primary victim is the Community itself, so there should be a European response, he says. Proposed sanctions reflect this and include exclusion from future subsidies, and a ban from Community or public office for up to five years, as well as fines and imprisonment.
However, both the proposed investigating procedures and the powers of the judges may prove contentious. The fundamental provision of the corpus juris is that the territory of the EU constitutes "a single legal area". There should be a European public prosecutor, who would be responsible for the investigation, prosecution, committal to trial and presentation of the case.
This public prosecutor would have the right to question suspects, collect documents and information, hear witnesses, notify the accused of the charges and ask the judge to conduct an expert inquiry. These powers resemble those of investigating magistrates in many European countries.
They also include the right to searches, seizures and phone-tapping, though Mr Justice Carney points out that these are circumscribed by guarantees of the rights of the accused.
The prosecutor may also ask that the accused be remanded in custody or on bail for six months, renewable for three months, "if there are good reasons for believing it necessary to stop him from committing such an offence, or from fleeing".
There is also provision for a "judge of freedoms" who would ensure that the accused person's rights under the European Convention of Human Rights were respected.
The corpus juris proposes that the offences it lists should be tried by courts consisting of "professional judges . . . and not simple jurors or lay magistrates". This has already led to an outcry in legal circles in Britain.
Speaking before his appointment as Attorney General, Mr Michael McDowell SC agreed with the opposition. "It's the thin end of the wedge. We will end up having federal courts trying people like in the United States," he told The Irish Times in June.
He was opposed to the extension of the powers of European institutions and to a common European legal area. "They always reach for more powers as an answer to their problems. I do not believe in a European federal project.
"I have a deep-seated view that the common law system [which pertains in Britain and this State, as well as the US, Australia, etc.] is fundamentally bound up with liberal parliamentary democracy. Under common law minimal competence is given to the State.
"Are we to have a common police force to follow it up? Common investigating magistrates? Common power to jail people?
"One of the attributes of a state is that it puts people in jail. You can't have a single jurisdiction without a state behind it. "In Europe they're wholly profligate with money. To propose that we should extend their powers is ludicrous. Can you imagine the size of the European DPP's office? And its incompetence? And the insufferable arrogance of the judges with no juries?
"Europe is not a democratic state. It should not have the right to prosecute people."
He was not convinced such an international system was necessary to combat fraud against the European budget.
"Empower people to deal with this in their own state. Make EU fraud an offence anywhere it occurs or wherever the person resides. It would be understandable that the EU would ask us to amend court rules for the admission of European documents, etc. It doesn't follow there should be a single corpus juris," he said.
Ireland's participation in such a project will be a policy matter, and as Attorney General, Mr McDowell has no role in formulating government policy. If the proposals do receive the sanction of the European Commission, the Minister for Justice will formulate the Irish response.